Berg files Motion for Summary Judgment, API Just Won't Go Away, and Rumblings from the Court

As of 11:00 this morning, Philip Berg had done three radio interviews, the last of which was a half-hour spot on G. Gordon Liddy's popular program. Later today, he will be the subject of a piece by a CBS affiliate in Anchorage, AK.

I spoke with Berg immediately after his Liddy spot, and he mentioned two things of note. First, he plans to file a motion for summary judgment with the court today. Second, he has been in contact with African Press International and, as we spoke, his staff was working with the API staff on the electronic transfer of the alleged Michelle Obama tape.

Motion for Summary Judgment

Today, Berg filed a motion for summary judgment, essentially asking the court to make a determination without going to trial. Because Barack Obama and the DNC failed to answer or object to his request for admissions within the mandatory 30-day period, Berg says, the admissions are admitted by default and, therefore, there are no longer any genuine issues of material facts remaining and, therefore, Berg is entitled to a judgment as a matter of law.

In other words, if the motion is granted, he wins.

Generally, according to the 1986 U.S. Supreme Court decision in Celotex Corp. v. Catrett, in order to defeat a motion for summary judgment, the non-moving party--in this case, Obama and the DNC--may not simply rely on his or her pleadings but must actually bring forth evidence on every material issue. So, here, Obama and the DNC would be forced to confront, with evidence proving otherwise, the admissions claimed by Berg to have been admitted by default yesterday.

A possible problem here for Berg, however, is the continued question sure to be raised by the defense as to whether or not the 30-day time limit for response to the request for admissions was actually running, as according to Rule 26(f) of the Federal Rules of Civil Procedure, such requests typically cannot be served until after a discovery-related conference. If the defense can successfully raise that argument, then the admissions were not due, cannot be admitted by default, and Berg runs the risk that Judge Surrick could rule against him with a judgment as matter of law.

African Press International

I'm honestly just tired of it. I do not believe that the tape exists and, if you've read over the past few days, I was disappointed in myself for not trusting my gut feeling--that the whole account of the "interview" with Michelle Obama was a fraud--in the first place. Still, if my gut is wrong, I'll be more than happy to own up to it. Berg, it seems, is far more certain.

"We are working with computer people and Chief Editor Korir over at African Press International as we speak so the audio file can be transfered over to us for distribution," Berg said. "They say the information on there is far more extensive than just the things they reported, but before I do anything with it I want to review it in full."

As I've mentioned time and time again, it reminds me of the purported pictures of Bill Clinton allegedly burning an American flag in Moscow which never surfaced. It reminds me of the so-called "whitey" videotape of Michelle Obama which has never surfaced. It just doesn't smell right, I don't like that I'm even covering it, but I feel as though it's relevant to the discussion.

Rumblings from the Court

On the court, I cannot go into much detail, but I've heard a few things from a few people. Now, keep in mind that while every fiber of my being tells me that Berg's suit will be dismissed for lack of standing, I've nonetheless had this nagging, itching feeling in my gut that Judge Surrick may just surprise everyone and come down, at least partially, for Berg. The rumblings I've heard from three different people, while CERTAINLY NOT CONCLUSIVE, do slightly reinforce my nagging gut feeling.

I will not be in the courthouse tomorrow or Friday, so knowing my luck, the decision may very well come down then (in fact, I've heard even more talk today saying that's the case). That's the kind of luck I have. Still, I'll be within telephone and BlackBerry range of my contacts there, and will ensure that at least the very basics will be reported here immediately after anything happens. More detail will, of course, come later at America's Right -- but, honestly, no matter how Judge Surrick comes down, I'm fairly sure the decision will [finally] be getting coverage from the mainstream press.

Keep checking here at America's Right for updates.